Secrétariat du Québec aux relations canadiennes - Gouvernement du Québec.
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Reference re Section 98 of the Constitution Act, 1867 and the Conditions for Appointing Judges to Québec Courts

Following a legal challenge regarding the constitutionality of the appointment of a Federal Court of Appeal judge to serve as a judge on the Québec Court of Appeal, the Government of Québec solicited the latter's opinion on two questions relating to the disputed appointment, in a reference presented on July 16, 2014. The first question seeked to determine which Québec courts are contemplated by section 98 of the Constitution Act, 1867. The purpose of the second question was to define the conditions for appointing judges to Québec courts required under this section and whether the section allows the appointment of persons who are members of federal courts.

The Québec Court of Appeal heard the reference on December 3, 2014 and delivered its opinion on December 23, 2014. In response to the first question, it concluded that the courts contemplated by section 98 are the Superior Court of Québec and the Québec Court of Appeal, a position defended by the Attorney General of Québec and the Attorney General of Canada. As for the second question, the Court concluded that section 98 of the Constitution Act, 1867 only requires that a person appointed to one of the Courts of Québec have previously been a member of the Barreau du Québec or be such a member when appointed. Consequently, a Federal Court judge who was a member of the Barreau du Québec prior to becoming a judge may be appointed to the Québec Court of Appeal.

This opinion was appealed to the Supreme Court of Canada. The appeal was heard on April 24, 2015. The Court dismissed the appeal, essentially for the reasons given by the Québec Court of Appeal.

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